In recent times, Minnesota has undergone substantial transformations in its cannabis legislation. Most notably, the legalization of recreational cannabis use for adults has reshaped the state’s legal landscape. This shift carries profound implications for employers, particularly in the realm of workplace drug testing policies.
In this article, we will explore how employers can adapt their policies to align with the changing regulations and strike a balance between safety and compliance.
Understanding Cannabis Legalization in Minnesota
Before we delve into the nuances of workplace drug testing policies, it’s crucial to establish a solid understanding of the recent cannabis legalization in Minnesota. As of August 1, 2023, persons aged 21 and older may possess and use cannabis for recreational purposes. This historic change comes with a range of associated regulations and guidelines that impact both individuals and businesses.
Key Points of Cannabis Legalization:
- Age Restriction: The legalization of recreational cannabis is limited to individuals who have reached the age of 21.
- Possession Limits: Although adults can legally possess and use cannabis, there are restrictions on the quantity allowed (two ounces of cannabis flower in a public place, two pounds of cannabis flower in a private residence).
- Public Consumption: Despite the legalization, public consumption of cannabis remains prohibited in many areas, and city- and country-specific regulations are still being created.
- Cannabis-Related Businesses: The legislation also paves the way for licensed cannabis-related businesses, including dispensaries. This may have implications for employers, especially if employees are involved in these enterprises.
- Driving Under the Influence: Operating a motor vehicle under the influence of cannabis remains illegal and subject to penalties. Employers with employees who drive as part of their job responsibilities must take steps to ensure that their employees are not driving under the influence.
- Federal Implications: Although cannabis is legal in Minnesota, it remains illegal under federal law. This can have ramifications for employers who are subject to federal regulations or contracts.
Impact on Workplace Policies:
The legalization of cannabis in Minnesota brings a host of considerations for employers. Minnesota’s Lawful Consumable Products Act prohibits employers from refusing to hire, disciplining, or discharging employees based on their use of legal consumable products, as long as those products are consumed during nonworking hours and off the employer’s premises, and the employees are not under the influence during working hours.
Unless otherwise provided by state or federal law, an employer is not required to permit or accommodate cannabis product use, possession, impairment, sale, or transfer while an employee is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment, and may only enact and enforce written work rules in such situations.
Workplace policies, therefore, need to accommodate the recreational use of cannabis while maintaining a safe and productive work environment. It’s essential to strike a balance between recognizing employees’ rights under state law and upholding the standards necessary for workplace safety and productivity.
Defining Cannabis Products: A Crucial Component
In the ever-evolving landscape of cannabis legalization in Minnesota, one crucial component that employers must not overlook is the proper definition and understanding of cannabis products. With the introduction of recreational cannabis use for adults, it becomes imperative for employers to have a clear grasp of what constitutes cannabis and its various forms. This understanding is pivotal in shaping effective workplace drug testing policies that adhere to the law while safeguarding workplace safety and productivity.
Variety of Cannabis Products:
Cannabis products come in a variety of forms, including but not limited to:
- Cannabis Flower: The traditional form of cannabis, typically consumed by smoking or vaporizing.
- Edibles: Cannabis-infused food products, such as gummies, brownies, or beverages, which can contain varying levels of the psychoactive compound THC.
- Topicals: Cannabis-infused creams, lotions, or balms designed for topical application, often used for therapeutic purposes.
- Concentrates: Highly potent forms of cannabis extracted into oils, waxes, or shatter, typically vaporized or dabbed.
- Tinctures: Liquid cannabis extracts, usually taken sublingually or added to food or beverages.
Distinguishing THC and CBD:
Another critical distinction in understanding cannabis products lies in differentiating between THC (tetrahydrocannabinol) and CBD (cannabidiol). THC is the psychoactive compound responsible for the “high” associated with cannabis, while CBD is non-psychoactive and often used for its potential therapeutic benefits.
Importance in Workplace Policies:
Properly defining cannabis products in your workplace drug testing policies is essential for several reasons:
- Policy Consistency: Clearly outlining which cannabis products are subject to testing and which are not helps maintain policy consistency and prevents confusion among employees.
- Legal Compliance: In the evolving legal landscape, maintaining clarity in your policies helps ensure that you comply with state and federal regulations while respecting employee rights.
- Safety Considerations: It enables you to differentiate between safety-sensitive positions that may require stricter testing and non-safety-sensitive roles, allowing for tailored policies that align with workplace safety priorities.
- Education and Awareness: By defining cannabis products, employers can also facilitate employee education and awareness programs, promoting responsible cannabis use and understanding within the workforce.
Implications for Workplace Drug Testing
The legalization of cannabis has raised several critical considerations for employers, especially regarding drug testing policies. Here are some key points to keep in mind:
- Testing for Cannabis in Pre-Employment: Under the new legislation, employers cannot test prospective employees for the presence of cannabis in pre-employment drug screenings, except for safety-sensitive positions, positions requiring a commercial driver’s license, positions funded by a federal grant, positions requiring face-to-face care, education, counseling, or medical assistance to children, vulnerable adults, or mental health Patients, or other positions for which state or federal law requires testing of a job applicant or employee for cannabis.
- Definitional Clarity: Drug-testing policies that clearly define cannabis products subject to testing ensure that drug tests accurately identify the presence of THC, the psychoactive component of cannabis, without mistakenly flagging CBD, which does not produce intoxicating effects.
- Testing for Other Drugs or Controlled Substances: Employers can continue to require drug testing for substances other than cannabis. This means that if your workplace policy includes testing for illegal drugs or controlled substances that remain prohibited by state or federal law, those tests can still be conducted.
Identifying Safety-Sensitive Positions
It’s important for employers to determine which positions within their organization qualify as “safety-sensitive.” A safety-sensitive position is a job, including any supervisory or management position, in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of the user or any other person.
Examples of safety-sensitive positions are truck drivers, heavy machinery operators, or certain healthcare professionals. Accurately designating these roles is crucial to ensuring that drug testing policies comply with the law.
Updating Drug Testing Policies
Updating your workplace drug testing policies is a critical step in response to cannabis legalization. Here’s a step-by-step guide to help you navigate this process:
- Review Current Policies: Start by thoroughly reviewing your existing drug testing policies to identify areas that need revision.
- Consult Legal Counsel: Given the legal complexities surrounding drug testing, it’s highly advisable to consult legal counsel to ensure that your updated policies are compliant with state and federal laws.
- Identify Safety-Sensitive Positions: Clearly define which positions within your organization are considered safety-sensitive and, therefore, subject to pre-employment cannabis testing.
- Communicate Changes: Communicate policy updates clearly and transparently to your employees. Address common questions and concerns to ensure understanding and cooperation.
Additional Considerations for Updated Drug Testing Policies in Minnesota
In the process of updating drug testing policies in response to the changing legal landscape, there are several critical considerations employers should keep in mind to ensure their policies are comprehensive, effective, and legally sound.
Written Policy Is Required
Minnesota law requires that the employer have in place and provide to employees a written drug and alcohol testing policy that contains the precise information required under the Minnesota Drug and Alcohol Testing in the Workplace Act and is conducted by a qualifying testing lab.
As you update your policies, it’s important to be aware of potential legal challenges. Employees have certain rights and expectations when it comes to workplace privacy and the policies that govern their employment. Striking a balance between maintaining a safe work environment and respecting these rights is crucial.
Employees have a reasonable expectation of privacy in the workplace, even in a testing context. While employers have a legitimate interest in ensuring a safe and productive work environment, policies that are overly invasive or infringe on individual privacy rights may face legal challenges. Legal counsel can provide guidance on how to craft policies that strike the right balance between safety and privacy, minimizing the risk of legal disputes.
Some employees may be medical cannabis users, and they are protected under Minnesota law. Employers should be aware of their obligations to accommodate such employees and consider potential accommodations, such as alternative assignments, when necessary.
Drug Testing Methods and Frequency
Selecting the most appropriate drug testing methods and determining the frequency of testing are crucial components of effective drug testing policies. Here are some considerations:
- Method Selection: Different drug testing methods have varying degrees of accuracy and detection windows. Urine tests, hair tests, saliva tests, and blood tests each have their advantages and limitations. Employers should choose a method that aligns with their specific needs, industry standards, and legal requirements.
- Only safety-sensitive positions may be subject to reasonable suspicion testing. As noted earlier, although job applicant drug testing is permissible, employers may not do pre-employment tests for cannabis with certain exceptions. All employees may be subjected to routine physical examination testing, reasonable suspicion testing, and drug treatment program testing.
Disciplinary Actions: Clearly define the consequences of a positive drug test, including potential disciplinary actions. Consistency and transparency in these procedures are essential to avoid misunderstandings and legal disputes. Note that:
- An employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of a positive test result from an initial screening test that has not been verified by a confirmatory test;
- An employer may not discharge an employee for whom a positive test result on a confirmatory test was the first such result for the employee on a drug or alcohol test or cannabis test requested by the employer unless:
- the employer has first given the employee an opportunity to participate in, at the employee’s own expense or pursuant to coverage under an employee benefit plan, either a drug, alcohol, or cannabis counseling or rehabilitation program, whichever is more appropriate, as determined by the employer after consultation with a certified chemical use counselor or a physician trained in the diagnosis and treatment of substance use disorder; and
- the employee has either refused to participate in the counseling or rehabilitation program or has failed to successfully complete the program, as evidenced by withdrawal from the program before its completion or by a positive test result on a confirmatory test after completion of the program.
- An employer may temporarily suspend the tested employee or transfer that employee to another position at the same rate of pay pending the outcome of the confirmatory test and, if requested, the confirmatory retest provided the employer believes that it is reasonably necessary to protect the health or safety of the employee, coworkers, or the public. An employee who has been suspended without pay must be reinstated with back pay if the outcome of the confirmatory test or requested confirmatory retest is negative.
- An employer may not discharge, discipline, discriminate against, or request or require rehabilitation of an employee on the basis of medical history information unless the employee was under a duty to provide the information before, upon, or after hire.
- An employer may discipline, discharge, or take other adverse personnel action against an employee for cannabis use, possession, impairment, sale, or transfer while an employee is working, on the employer’s premises, or operating the employer’s vehicle, machinery, or equipment if, as the result of consuming cannabis, the employee does not possess that clearness of intellect and control of self that the employee otherwise would have.
- An employer may also take disciplinary action as authorized or required under state or federal law or regulations, or if a failure to do so would cause an employer to lose a monetary or licensing-related benefit under the law or regulations.
Employee Assistance Programs (EAPs): EAPs can be valuable resources for employees dealing with substance abuse. Encourage employees to seek assistance through these programs, and provide information on how to access them.
A Roadmap to Policy Evolution: Cannabis Legalization and Your Workplace
Adapting your workplace drug testing policies to the changing legal landscape of cannabis in Minnesota is essential for ensuring both legal compliance and workplace safety. Keep in mind that laws can change, so it’s crucial to stay informed and consult legal experts to navigate the complexities of drug testing effectively. Striking the right balance between safety and employee rights is key to maintaining a harmonious and compliant workplace in the evolving landscape of cannabis legalization in Minnesota.
At Avisen Legal, our team of experienced attorneys is well-versed in the intricacies of employment law, including the evolving landscape of cannabis legalization in Minnesota. We are here to provide the guidance and legal expertise you need to update your drug testing policies effectively and navigate any legal challenges that may arise.
Don’t hesitate to reach out to us for personalized assistance tailored to your organization’s unique needs. By working together, we can ensure that your policies not only comply with the law but also foster a workplace environment that prioritizes both the safety and the well-being of your employees. Whether you require legal guidance in employment matters, contract law, or corporate compliance, Avisen Legal is here to support you. Contact us at 612 584 3400 to discuss how our experienced team can help safeguard your business